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Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14509
Experience:  15 years exp all aspects of general law
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I am a pa resident and my separated wife filed for a order

Customer Question

I am a pa resident and my separated wife filed for a order of protection four months after she left in a court in the state of Maryland. A Maryland judge singed the order and sent PA sheriffs to my home and put me out of my home and took my guns. When we went to court she droped the charges but the judge refuses to release the guns and PA sheriffs office will not release them without judges release I had a lawyer submit a petition to the judge but he refuses to sign it
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Hello there --

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Have either of you initiated any divorce proceedings in this matter?

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Where is she living now?

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Ho

Customer: replied 1 year ago.

yes a divorce has been filed for and she lives in MD when she came into the home she did four thousand dollars in damage and stole more of my property that I have proof of

Expert:  Legalease replied 1 year ago.

Hello again Michael --

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You are correct in stating that if the charges have been completely 100% dismissed against you for the domestic violence filing then your firearms rights should have also been restored. So, I think that there is more going on here behind the dismissal than you realize. First, most courts and DA's will not accept a straight "dismissal" of domestic violence charges because the woman changed her mind -- the court is immediately suspicious of such a change of heart and mind and believe that the husband may have influenced the change of heart by the wife with threats. Thus, most prosecutors will either pursue the case fully through a trial using pictures of the wife and the testimony of the police as witnesses. In fact, the closest thing that the court will get to a dismissal is that they will complete the disposition with a "continued without a finding" to be dismissed if nothing occurs in [3][6][9] months between the couple -- and if something does happen the court will dust off the original matter and put it up for trial together with any second incident. THe MD court may also have reduced the domestic violence order to a misdemeanor and under federal law, if either a continued without a finding or a misdemeanor charge are actually used in place of a guilty finding on the domestic violence and an issuance of the protective order then the federal law still considers the matter an open. valid charge of domestic violence and the judge is still not permitted to reinstate your gun rights in MD (which would transfer over to PA).

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I know that sounds confusing but the botXXXXX XXXXXne here is that the MD court refused to reinstate your guns and the reason can only be that you did not get a 100% guaranteed dismissal of the charges -- the court simply changed the charges to something of a lesser nature so it will not look so bad on your record, but the underlying domestic violence allegations are still there and will remain on your record until the court actually does dismiss the charges and then you apply for the record to be expunged/sealed when your divorce is complete.

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My suggestion here to you is to either contact your lawyer and have the lawyer contact the court to determine if the current on record charge and sentence and/or disposition of your estranged wifes domestic violence charges against you were actually dismissed or were they reduced to something lesser that is still being considered by the judge to be a misdemeanor domestic violence charge which meets the stricter federal guidelines to continue to withhold your right to the possession of your guns. If that is the case, then your lawyer should request that the court fix this situation to get the correct entry of disposition made in your case (the court can vacate its finding and sentence from your last hearing and enter a true dismissal of the matter which can be reported as a dismissal to the PA and the federal court systems record reporting / searching agency. Your lawyer should inform the judge that one of the goals in dismissal will result in the reinstatement of your firearms rights and if the judge did not intend for that to happen right now (wanted to make you wait a bit for) then the judge should inform your lawyer of this and your lawyer should ask the judge to enter a disposition of the case that will result in the return of your firearms.

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Unfortunately Michael there are so many gun control laws out there that even the courts are uncertain how some of them apply to each case as it comes before them and when you are talking about the interaction and dovetailing of state and federal laws, many state judges do not handle the case disposition correctly in order to also satisfy the federal law requirements on domestic violence and the right to keep and carry firearms after such a domestic violence charge has been lodged against you by a state court.

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I wish I could point you to one specific item and state that you can get this solved immediately by correcting the court error; but I cannot. This will take some inquiries by your attorney of the court and the judge.

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Please let me know if you have further questions. If not, can you please press the 3rd, 4th or 5th smile face below so I will be paid for my time assisting you tonight. I am paid NOTHING unless you press a positive rating below -- pressing the 3rd, 4th or 5th smile face below will not cost you any additional money - it simply acts as a trigger to Just Answer to pay me for my time (and you can continue to ask follow up questions on this matter even after you press a positive rating). THANK YOU VERY MUCH !!

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MARY

Customer: replied 1 year ago.

I am sorry but you are incorrect the charges were droped at the court and I have the paper work both my attorney in Maryland and Pa both do not understand why this is happening and do not seem to want to persue it

Expert:  Legalease replied 1 year ago.

Hello again Michael -

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A negative rating was not justified here -- I am NOT incorrect because I gave you the correct legal reasons why a Judge would have a justifiable reason to refuse to sign an order releasing your firearms back into your custody. The reasons above are the ONLY justification that the MD judge has for doing this and I am not able to crawl into the mind of the Judge who handled your case in order to find out WHY he is refusing to release your firearms so that is why I suggested that either you or your attorney ask the clerk's office or the Judge direclty what the reason is for this hold up. There could be a possibility that the reason why the Judge is withholding your firearms is a personal reason (perhaps someone in his family had something similar happen to them) and unless you or your attorneys pursue this matter back into the court and either get a valid reason from this judge regarding what his LEGAL reasons are for doing this OR the MD attorney appeals the denial of firearms to a higher court to get the lower court order overturned and your firearms returned to you, then you will never know why this happened and you will probably never have the firearms released back into your custody.

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I cannot tell you WHAT the reason of the Judge was -- I can only tell you what the legal reasons for this might be under the circumstances and that is what I did. I did my job based upon the facts that you gave me and what the current law is in MD and at the federal level regarding returning firearms to a person who has a domestic order of protection dismissed against them.

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SO, as I stated above, my suggestion is still to contact the court or the judge and determine what the judge believes is the disposition of the case (no matter what your paperwork states, because the judge could simply be making an error here and what you have in your hands may not be the same thing as he has in his mind and his files). You have probably paid your attorneys a lot of money up to this point to handle these matters for you and you should go back to or call back the MD lawyer and tell the MD lawyer that he needs to pursue the reasons why your firearms were not reinstated with this judge and/or this court (tell him that it is part of his job in representing you in these matters) and if the attorney refuses to do so, then you should file a complaint against the attorney with the MD attorney licensing board requesting that they order him to pay back a portion of the fees to you because he did not complete the job that he was hired to do.

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I am sorry if I could not give you an easy or miracle solution to these issues if that is what you were looking for but I would appreciate it if you would change the rating to at least "OK" underneath this rating box because I did do what you paid for -- I told you that the firearms should have been reinstated and the legal reasons that the judge could use to refuse to reinstate the firearms --- but determining exactly what the reasoning of the judge was in this case is not something that I can do from here.

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THANK YOU

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MARY

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